Alito: For the Prosecution?

The National Law Journal today (free link) examines Judge Alito from a criminal defense perspective. There are several quotes from Law Prof Doug Berman of Sentencing Law and Policy.

Bottom line: Don't expect Alito to be another Earl Warren.

...as Alito's rulings as a judge on the 3d U.S. Circuit Court of Appeals reflect, his prosecutorial experience does not lead him in the same direction as it did Warren. "It is a different time, a different place and a different set of realities," said sentencing law scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law.

Alito's rulings, as many noted last week, have something for everyone. In the criminal justice area, he doesn't always rule in favor of the government, but he does more often than not.

..."My general sense is he is a prosecutor's prosecutor and likely to view the world from that perspective," predicted Berman. "He generally thinks guidelines are OK and he's confident prosecutors will exercise discretion properly. You can see that reflected in a lot of his criminal justice decisions. Do I think he will bend over backward for prosecutors? Not exactly. But I think criminal defendants should hope he is more like Scalia than Rehnquist and O'Connor in that Scalia is more willing to take his concerns about the Constitution and government power and bring them home in the criminal justice context."

One note of pessimism that I agree with:

He's more predictable than consistent, said another defense attorney. Alito has granted habeas relief in a few cases to come before him, he explained, "But the bottom line is he is a very predictable, very conservative law enforcement vote in criminal cases. There is now on the Supreme Court a very strong voting block of four in criminal cases to be extremely receptive to most arguments made by the government."

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    Re: Alito: For the Prosecution? (none / 0) (#1)
    by roxtar on Sat Dec 17, 2005 at 01:05:48 PM EST
    Scalia's opinion in Crawford v. Washington was far more than I had ever hoped for. Having said that, it was constitutionally correct and intellectually honest, and I've gotten as much mileage out of it as I have from Miranda, Terry, et al.

    Re: Alito: For the Prosecution? (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:49 PM EST
    I get more mileage out of Crawford than any other case that has been decided in the last 10 years. Crawford is an amazing opinion that, like Roxtar stated, is as important for those in the trenches as Miranda or Terry. If Scalia gives us more Crawford wins, I might start having a warm fuzzy spot in my heart for him, than again, hell might be freezing over sometime soon too.

    Re: Alito: For the Prosecution? (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:49 PM EST
    I read about Alito's failed prosecution of a mafia family, in what is billed as the longest prosecution in US history -- all acquited, and Alito saying he wasn't embarrassed -- you don't win them all. 'Oh well' would seem a rather abbreviated description of how such a prosecution could totally collapse. 'Oh well,' it's not like the Bill of Rights was forever. I wonder what Rx drug Alito takes for his aloof lack of emotion over his failures. Same as Colin Powell and Brownie?

    Re: Alito: For the Prosecution? (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:51 PM EST
    Well, since I brought it up, here is more info on the gangster cases of Alito, ignoring the ridiculous rightwing attacks on Dems viz-a-viz Italians: "Mr. Alito's office secured convictions against three members of the Genovese crime family for plotting to kill John Gotti and his brother Gene in 1989. He also successfully started and prosecuted cases involving members of the Lucchese crime family." --NYT Started? That seems to contradict what Billmon says, that he came into the case late: "A Lexis-Nexis check reveals that Alito came to the Lucchese case long after the indictments had been unsealed and well after the trial began. Consensus legal opinion seems to have been that the judge lost control of the trial. The prosecution's witness were also, not surprisingly, a nasty bunch, and in some cases admitted to crimes worse than those charged against the defendants. "Finally, it turns out that at least one juror -- a relative of a Lucchese foot soldier -- was bribed, which came out after the feds and a New Jersey organized crime strike force finally managed to nail most of the family's senior bosses in a different case. "So while the Lucchese prosecution certainly wasn't Alito's finest hour, it wasn't his fault, either. And Alita was also a standup guy about it -- he stood up in front of the cameras after the trial and accepted full responsibility." --Billmon "1) United States v. Accetturo (U.S. District Ct., 1986 to 1988): This racketeering†trial of the "Lucchese Family" (before the Hon. Harold A. Ackerman, U.S.D.J.) is the longest federal trial in United States history (November 1986 to August 1988), with "not guilty" verdicts for all 21 defendants." link Finally, the part I was commenting upon, his reported words and attitude: Samuel Alito, the US Attorney on the case, said, "Obviously we are disappointed but you realize you canít win them all." Alito also said he had no regrets about the prosecution but in the future would try to keep cases "as short and simple as possible." Alito continued, "I certainly donít feel embarrassed and I donít think we should feel embarrassed." [Guardian, 8/29/88; Chicago Tribune, 8/27/88; UPI, 8/26/88] -- Dem Underground I find this lack of embarassment about major failures to be ... embarassing. So like Bush's "Everything we do is the law" autocracy, the suggestion is that when a major case collapses, oh well. NO ONE keeps their ordinary jobs when they have major failures and the attitude of 'oh well.' Since his comments are fragmentary, this is as far as I would care to speculate, except to say that the rapidity of the rightwing and corp-press attacks on supposed Dem racism, and the NYT's propaganda about the other crime family, with the one unsupported claim at the end, like an afterthought -- suspicious stuff.